How can an EB-5 investor remain in the U.S. if conditions are not removed?

I am an EB-5 investor from India. In case the requirements are not met after two years for removal of conditions, can I re-invest in another EB-5 project while still on the conditional immigrant visa? How can I remain in the United States and re-apply for EB-5 if my I-829 ends up getting rejected?

Answers

If your I-829 is denied, it might be possible to make a new EB-5 investment and remain in the United States. Upon I-829 denial, the USCIS is supposed to put you into removal proceedings before an immigration judge. It might be possible to work together with the judge, ICE, and the USCIS to delay those proceedings until your I-829 could be reopened, or until you complete a new EB-5 investment and "re-immigrate" on the basis of that new case. It is likely that you would not have to leave the United States, or at least that you could remain for many months while your removal case is pending.

If the I-829 is denied you will be out of status and will have to leave the United States. Of course, you may have a legal basis to appeal or pursue other legal remedies. The alternative is to file another EB-5 petition to be approved by your spouse who will be able to obtain conditional permanent residency and then file an I-829 petition and include yourself (especially if your own I-829 is denied).

If your I-829 is denied and you do not challenge it by appeal or in immigration court, then you may ultimately have no underlying immigrant status in the United States. Without underlying immigrant or nonimmigrant status, you could apply again for the I-526 but - under the current law - you may have to wait overseas while it is decided. In this scenario - again under the current rules - you may want to consider another temporary visa category such as the H-1B or L-1 visa which will allow you to remain in the country while you await a decision on your new I-526.

You should consult an experienced EB-5 immigration attorney to discuss the specifics in your case and determine the most appropriate strategy of why is the entity unable to demonstrate job creation and how it can be fixed and explained at the I-829 stage, or refiling a new I-526, and/or possibly finding other immigration options.

John J Downey

Immigration Attorney

Answered onAugust 13, 2015

If you are rejected, you are "out of status." If you apply for another EB-5 project, that by itself is not valid status. If you applied as a student or another legitimate category then you could remain.

Absent fraud on the part of the regional center's project or apparent indicators that the project will not move forward as planned, it may not be necessary for this investor to re-invest in another project during his/her conditional residence period or the pendency of removal of condition petition. According to USCIS' Policy Memo dated 08/10/2015, it will continue to permit an investor who has been admitted to the United States on a conditional basis to remove those conditions when circumstances of the project have changed, provided that the Form I-526 was filed in good faith and with full intention to follow the plan outlined in that petition. If the jobs have not yet been created at the time of the filing Form I-829, the regulations still allow Form I-829 petitioners to demonstrate that jobs will be created "within a reasonable period of time" at the time of filing the Form I-829 petition. USCIS currently considers three years from the investor's admission as a conditional permanent resident or adjustment to conditional permanent resident to be a reasonable period of time. Further, the investor petitioner has to show that he or she has continuously maintained his or her capital investment over the two years of conditional residence when filing the Form I-829 petition. Furthermore, as long as any return on investor's capital, such as distribution of profits, is not a portion of the investor's principal investment and was not guaranteed to the investor during or after the conditional residence period, and even before the requisite jobs have been created, the sustainment of the investor's capital requirement can still be met for the purpose of removal of condition. For another example, if the investor shows that all of his or her invested funds were lost as a result of the investment due to poor management, the investor may still meet the sustainment requirement for the Form I-829 adjudication. If the investor's I-829 petition is denied, USCIS will terminate his/her permanent residence and seek removal in immigration court. At the removal proceedings, USCIS has the burden to establish, by a preponderance of the evidence that the facts and information in the investor's I-829 are not true and that the petition was properly denied. However, the investor will have the opportunity to seek all appropriate relief under the immigration laws in court before an immigration judge. Normally, the removal proceedings can take many years; the investor should retain his/her conditional resident status before and during USCIS review of termination of that status during the removal proceedings. The investor may re-apply for EB-5 immigration benefits through another project while in the United States and before removal proceedings are initiated. But the investor must be careful with the issue of unlawful presence and should consult with an immigration attorney experienced in removal proceedings to ensure that he/she does not have problems at the adjustment of status stage, should the second project investment I-526 petition be approved.

If you are sure that the requirements to remove conditions have not been met and there is a high likelihood that your I-829 will be denied, you should try to get your money out of the project and reinvest and refile a I-526 as soon as possible. Technically, once the I-829 is denied, the reason for your stay in the United States ends and you may be put into a removal proceeding to send you back to India. However, during that proceeding, if you already have another I-526 filed, then you may be able to ask for and receive permission to stay pending the I-526 adjudication. But, you need to make sure that the new project in which you will invest has a very high likelihood of getting I-526 approval and eventually I-829 approval as well based on the track record so that you do not go through this again. Please work with a very experienced EB-5 lawyer who could guide you through this, as you are already in a very difficult situation.

You would probably have to start with a new I-526 petition, and change your status to another nonimmigrant or immigrant status to remain in the United States.

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